United States v. Alvarado

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4593
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GERARDO ALVARADO ALVARADO, a/k/a El Gato,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:05-cr-00354-NCT)
Submitted: October 18, 2007 Decided: October 22, 2007
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William T. Peregoy, THE LAW OFFICE OF WILLIAM T. PEREGOY,
Wilmington, North Carolina, for Appellant. Sandra Jane Hairston,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gerardo Alvarado Alvarado appeals from his 315-month
total sentence imposed following his guilty plea to conspiracy to
distribute cocaine and conspiracy to launder money. Alvarado’s
attorney filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), challenging the district court’s determination of the
extent of the downward departure for substantial assistance, USSG
§ 5K1.1.* Alvarado filed a pro se brief challenging his sentence.
Our review of the record discloses no reversible error;
accordingly, we affirm Alvarado’s conviction and sentence.
Counsel argues that the district court abused its
discretion in determining the extent of the departure because the
court believed that it was limited by the government’s suggestion
of an appropriate range. We find that the district court was aware
of its discretion to determine an appropriate departure and that
its determination of a departure amount in the middle of the range
suggested by the government was reasonable. See United States v.
Pearce, 191 F.3d 488, 493 (4th Cir. 1999).
In his pro se brief, Alvarado contends that the district
court erred in determining his sentence by applying offense level
43, rather than 41, as was recommended by the probation officer,
and thus, the departure sentence should also be lower. We find no
*
U.S. Sentencing Guidelines Manual § 5K1.1 (2005 & Supp.
2006).
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merit to these contentions. The offense level of 41 was stated in
an earlier version of the presentence report, which was corrected
because of the erroneous offense level. The revised presentence
report correctly noted that Alvarado’s offense level was 43.
Lastly, Alvarado contends that the district court’s
findings that he was a leader or organizer in the offense and that
he possessed a firearm resulted in an increase in his sentence
beyond the maximum authorized by the charges in the indictment, in
violation of the ruling in Apprendi v. New Jersey, 530 U.S. 466(2000). First, we note that Alvarado did not receive an
enhancement for possession of a firearm, but rather two levels were
added because Alvarado was convicted of money laundering in
addition to the drug offense. See USSG § 2S1.1(b)(2)(B).
Moreover, Apprendi prohibits the imposition of a sentence beyond
the maximum authorized by the statute of conviction, it does not
prohibit the consideration of relevant conduct in determining the
applicable guideline range. Thus, Alvarado’s argument is
unavailing.
We find that the district court properly applied the
Sentencing Guidelines, determined a reasonable departure amount
based on Alvarado’s substantial assistance, and considered the
relevant sentencing factors before imposing the 315-month sentence.
18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007); see United
States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005); Pearce, 191
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F.3d at 493. Additionally, we find that the sentence imposed was
reasonable. See Hughes, 401 F.3d at 546-47 (holding that sentence
must be “within the statutorily prescribed range and . . .
reasonable”). Accordingly, we affirm Alvarado’s sentence.
As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
affirm Alvarado’s conviction and sentence. This court requires
that counsel inform his client, in writing, of his right to
petition the Supreme Court of the United States for further review.
If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on the
client. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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